Kimberly Ann Harmon F/K/A Kimberly Ann Bitzer v. Alan Howard Bitzer

Affirmed in Part; Reversed and Remanded in Part and Memorandum Opinion filed February 21, 2006 Affirmed in Part; Reversed and Remanded in Part and Memorandum Opinion filed February 21, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-00921-CV ____________ KIMBERLY ANN HARMON, Appellant V. ALAN HOWARD BITZER, Appellee On Appeal from the 247th District Court Harris County, Texas Trial Court Cause No. 1992-40501 M E M O R A N D U M   O P I N I O N In this restricted appeal, appellant Kimberly Ann Harmon appeals the dismissal of her motion for clarification of a domestic relations order for want of prosecution and an award of attorney=s fees to appellee Alan Howard Bitzer. Harmon contends (1) she satisfies the requirements for a restricted appeal, and (2) the trial court=s judgment should be reversed because the face of the record shows that the trial court granted relief on unliquidated claims without creating a record to support the relief granted. Because we agree that the face of the record demonstrates error because the award of attorney=s fees is not supported by a reporter=s record or any other evidence, we reverse and remand as to that portion of the trial court=s judgment. We affirm the remainder of the trial court=s judgment. Factual and Procedural Background Kimberly Ann Harmon (formerly Bitzer) and Alan Howard Bitzer were divorced 0n January 29, 1993. The divorce decree recited that, pursuant to a Qualified Domestic Relations Order (QDRO) signed contemporaneously with the decree, Harmon was awarded 20% of the benefits accumulated as of the date of the divorce in Bitzer=s Arco retirement account. In June of 2002, Harmon filed a motion for clarification, alleging that the original QDRO for the Arco retirement account was never submitted to the trial court, and requesting that the trial court enter a proposed new QDRO to conform to new guidelines for qualification due to a merger of the Arco benefit plan into other plans. Bitzer opposed the motion for clarification, contending that the motion impermissibly sought to alter the terms of the divorce decree. Bitzer also alleged that, contrary to the representations in Harmon=s motion, the original QDRO for the Arco retirement account was signed by the trial court, but apparently was never forwarded to the plan administrator. Had the QDRO been timely forwarded and had Harmon=s counsel reviewed the trial court=s file, Bitzer contended, the motion for clarification would not have been necessary. Bitzer also requested reasonable attorney=s fees and expenses incurred in responding to Harmon=s motion for clarification. On September 10, 2003, counsel for Harmon and Bitzer entered into a Rule 11 agreement to pass the trial scheduled for the next day in order to give Harmon additional time to have the original QDRO qualified by the plan administrator. The parties also agreed to reschedule the trial to January 5, 2004. The Rule 11 agreement was signed by both parties and filed with the trial court. On November 14, 2003, the parties were ordered to appear before the trial court by a notice entitled AORDER TO APPEAR@ and signed by the court coordinator. The parties were directed to appear on November 21, 2003, and were informed that failure to appear would be grounds for dismissal for want of prosecution, and that no further notice would be given. Neither Harmon nor her attorney appeared on November 21, and so on that day the trial court entered an order dismissing Harmon=s motion for clarification for want of prosecution with prejudice, and awarded attorney=s fees of $3,500 to Bitzer=s attorney. The order acknowledged the parties= Rule 11 agreement, but recited that Anotwithstanding@ this agreement, they had been ordered to appear before the trial court. The trial court also signed a separate order on November 24, 2003, dismissing the case for want of prosecution. Harmon filed her notice of restricted appeal on May 19, 2004. Analysis of Restricted Appeal In her first issue, Harmon contends she has satisfied the four requirements for bringing a restricted appeal. In her second issue, Harmon contends Bitzer was awarded various forms of unliquidated damages that are unsupported by any evidence because no reporter=s record was made of the hearing. We will address each of these issues, but first we examine Bitzer=s contention that Harmon failed to properly preserve error in the trial court. 1. Preservation of Error and Restricted Appeal As an initial matter, Bitzer contends Harmon failed to preserve her complaint for appeal because she did not present it to the trial court or raise it in a post-judgment motion.[1] However, a court of appeals can review unpreserved error in a restricted appeal. See Onwukwe v. Ike, 137 S.W.3d 159, 167 (Tex. App.CHouston [1st Dist.] 2004, no pet.) (stating that one need not preserve error to bring a restricted appeal); Mabon Ltd. v. Afri-Carib Enters., Inc., 29 S.W.3d 291, 299 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (noting that to bring a restricted appeal, appellant must not have participated at trial, and so could not have preserved error for appeal); see also Texaco, Inc. v. Central Power & Light Co., 955 S.W.2d 373, 375 (Tex. App.CSan Antonio 1997, pet. denied) (rejecting argument that unpreserved error could not be raised in appeal by writ of error from a jury trial). Moreover, the restricted appeal rule, by its plain language, is available only to one who, among other things, Adid not timely file a postjudgment motion.@ Tex. R. App. P. 30. Therefore, we reject Bitzer=s argument. 2. The Requirements for Restricted Appeal We next turn to the substance of Harmon=s argument that she has satisfied the requirements for a restricted appeal. To prevail on a restricted appeal, Harmon must establish that (1) she filed notice of the restricted appeal within six months after the judgment was signed, (2) she was a party to the underlying lawsuit, (3) she did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. See Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Tex. R. App. P. 30. Bitzer appears to challenge only the fourth requirementCthat error is apparent on the face of the recordCby arguing that the trial court had authority to dismiss Harmon=s suit for want of prosecution under either Texas Rule of Civil Procedure 165a or its inherent authority when neither Harmon nor her attorney appeared. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (stating that trial court=s authority to dismiss for want of prosecution stems from Texas Rule of Civil Procedure 165a and its inherent power under the common law). Therefore, the only question is whether Harmon can demonstrate that error is apparent on the face of the record. Harmon contends there are three errors on the face of the record: $ the Aorder@ requiring the parties to appear on November 21, 2003 was signed Aby a person who is not a judge qualified to sign orders@; $ the trial court=s order dismissing the case allows Bitzer to back out of the Rule 11 agreement unilaterally; and $ the trial court=s order grants attorney=s fees without benefit of a record. The face of the record, for purposes of restricted appeals, consists of all papers on file in the appeal, including the reporter=s record. See Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). Sufficiency of the evidence may be reviewed in a restricted appeal. Id. Bitzer=s argument that the trial court has authority to dismiss the case for want of prosecution addresses the second complaint Harmon makes; that is, that the dismissal conflicted with the parties= Rule 11 agreement to reset the trial date to a later date. The trial court is authorized by the rules of civil procedure and its inherent power to decide whether to dismiss a case for want of prosecution. See Villareal, 994 S.W.2d at 630. The parties may agree between themselves that they would prefer to extend a trial date, but the trial court controls its docket and so can, by its authority, set a case for dismissal regardless of an agreement between the parties.[2] Thus, the trial court=s dismissal for want of prosecution, notwithstanding the Rule 11 agreement, does not constitute error on the face of the record.[3] In addition, the Aorder@ requiring the parties to appear on November 21, 2003 does not constitute error on the face of the record simply because it is signed by someone other than the trial judge. Although entitled AOrder to Appear,@ the notice merely informed the parties that their case was set for dismissal on a date and time certain. The notice also warned that A[f]ailure to appear and announce at the call of the docket will be grounds for this case to be DISMISSED FOR WANT OF PROSECUTION@ and that A[n]o further notice will be given.@[4] It is apparent that the Aorder@ Harmon complains of is nothing more than the notice specified in Texas Rule of Civil Procedure 165a, the rule governing dismissal for want of prosecution. See Tex. R. Civ. P. 165a (ANotice of the court=s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record . . . .@). We decline to find error on the face of the record on the basis of this notice. However, one of Harmon=s complaints does identify error on the face of the record. The trial court awarded Bitzer=s attorney $3,500 in attorney=s fees, but there is no reporter=s record or other evidence supporting this award.[5] If damages are unliquidated, a court rendering a default judgment must hear evidence on damages. Tex. R. Civ. P. 243; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). Attorney=s fees A>are by their very nature unliquidated unless the exact amount is fixed by agreement.=@ Siddiqui v. West Bellfort Prop. Owners Ass=n, 819 S.W.2d 657, 659 (Tex. App.CEl Paso 1991, no writ) (quoting Freeman v. Leasing Assocs., Inc., 503 S.W.2d 406, 408 (Tex. Civ. App.CHouston [14th Dist.] 1973, no writ)). In this case, evidence is required to support an award of reasonable attorney=s fees.[6] Courts have held that the lack of a reporter=s record in a post-answer default judgment requires reversal when the appellant=s right to have the case reviewed on appeal can be preserved in no other way. See Rogers v. Rogers, 561 S.W.2d 172, 173B74 (Tex. 1978); Smith v. Smith, 544 S.W.2d 121, 122 (Tex. 1976). In such an instance, the error is harmful: AIf the judgment is rendered after presentation of evidence to the court in the absence of the appellant and his attorney, the failure to have the court reporter present to make a record constitutes reversible error.@ Chase Bank of Tex., N.A. v. Harris County Water Control & Improvement Dist., 36 S.W.3d 654, 655 (Tex. App.CHouston [1st Dist.] 2000, no pet.). ASuch error is not harmless because, without a reporter=s record, this Court is unable to determine if sufficient evidence was submitted to support the judgment.@ Id. at 655B56 (holding that lack of reporter=s record in restricted appeal of default judgment entitled defendant to new trial). Although these rules are generally applied to default judgments, we think they apply equally in the context of a dismissal for want of prosecution. Here, Harmon requested a reporter=s record of the November 21, 2003 hearing from the court reporter to be included in the record on appeal, but no reporter=s record was provided. Harmon was also informed by the court reporter that no record was made of the proceedings on that date. Thus, Harmon has established error on the face of the record because of the record=s failure to reflect what, if any, evidence was submitted to the trial court in support of the attorney=s fee award.[7] See Rogers, 561 S.W.2d at 173B74; Smith, 544 S.W.2d at 123; Chase Bank, 36 S.W.3d at 656. Therefore, Harmon is entitled to a new trial on the issue of attorney=s fees. 3. Other Unliquidated Claims Although we have held that Harmon is entitled to a new trial on the issue of attorney=s fees, we do not agree with Harmon that she is entitled to reversal of the entire case. As we explain below, Harmon identifies no other unliquidated claim. In her second issue, Harmon contends that the trial court granted relief on Aunliquidated claims@ by (1) granting the award of attorney=s fees, (2) granting the Aunilateral withdrawal@ of the Rule 11 agreement, and (3) denying all of Harmon=s requested relief. Thus, Harmon concludes, the lack of a reporter=s record to support these purported awards of unliquidated damages entitles her to a new trial. However, other than the award of attorney=s fees, which we have already discussed, none of the identified Arelief@ constitutes relief on unliquidated claims. First, as discussed above, the trial court was authorized by the rules of civil procedure as well as its inherent authority to dismiss Harmon=s claims for want of prosecution regardless of any agreement between Harmon and Bitzer to extend the trial date. Harmon provides no authority or argument to support her contention that any effect on the parties= Rule 11 agreement constitutes Aunliquidated damages@ requiring the court to hear evidence, and we find no basis upon which to reach such a conclusion. See Tex. R. Civ. P. 243. Therefore, we find no error on the face of the record on this basis. Likewise, we find no error on the face of the record relating to the denial of all of Harmon=s requested relief.[8] By its very nature, a dismissal for want of prosecution dismisses a party=s claims; therefore, the denial of relief cannot be considered damages for an Aunliquidated@ claimCor any claimCbecause relief is denied. Nor is the opposing party awarded any unliquidated damages merely because the plaintiff=s claims are denied. Therefore, with the exception of the award of attorney=s fees, which we hold constitutes error on the face of the record because no reporter=s record or other evidence supports the award, we find Harmon=s arguments concerning other unliquidated damages have no merit. Conclusion We hold that the trial court abused its discretion in awarding attorney=s fees to Bitzer=s attorney without a reporter=s record or other evidence to support the award; therefore, Harmon has demonstrated error on the face of the record entitling her to a new trial on the issue of attorney=s fees. We therefore affirm the trial court=s judgment dismissing Harmon=s claims, but reverse and remand that portion of the trial court=s judgment awarding attorney=s fees for further proceedings in accordance with this opinion. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed February 21, 2006. Panel consists of Justices Fowler, Edelman, and Guzman. [1] In this argument, Bitzer cites former Texas Rule of Appellate Procedure 52(a); we understand him to be referring to Texas Rule of Appellate Procedure 33.1. See Tex. R. App. P. 33.1 (general error preservation rules). [2] We also note from the record that the trial on Harmon=s motion was rescheduled at least once, and the Rule 11 agreement reflects that the trial had been rescheduled four times before. [3] Bitzer also suggests, without citation to authority, that Harmon=s failure to take any action to comply with the Rule 11 agreement is another reason to deny the restricted appeal. However, an appellant in a restricted appeal is not required to show diligence or lack of negligence before her complaints will be heard. See Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996). [4] The document provided as follows: On or about SEPTEMBER 11, 2003 this matter was set for trial and it was announced to the Court that this case had reached a settlement agreement. All parties and counsel are now ordered to appear in front of this Honorable Court to present your evidence and your final order for signature on NOVEMBER 21, 2003 at 9:30 AM. Failure to appear and announce at the call of the docket will be grounds for this case to be DISMISSED FOR WANT OF PROSECUTION. No further notice will be given. The document also recited that the notice was sent to the attorneys for both parties. [5] The trial court may award reasonable attorney=s fees in a proceeding to enforce or clarify a divorce decree. McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 132 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Tex. Fam. Code ' 9.014. It is within the trial court's discretion to award attorney=s fees. Id. The decision to grant or deny attorney=s fees under the Family Code is reviewed for an abuse of discretion. Schneider v. Schneider, 5 S.W.3d 925, 930 (Tex. App.CAustin 1999, no pet.). [6] Although neither party raises the issue, we note that, in the context of this case, the trial court may not simply take judicial notice of reasonable attorney=s fees without supporting evidence. Section 38.004 of the Civil Practice and Remedies Code provides that a trial court may take judicial notice of the usual and customary attorney=s fees and the contents of its case file without receiving further evidence. See Tex. Civ. Prac. & Rem. Code Ann. ' 38.004. However, Chapter 38 of the Civil Practice and Remedies Code does not permit the trial court to take judicial notice of the reasonableness of an attorney=s fee and does not apply to a suit that is not one of the types of claims enumerated in section 38.001 of that chapter. See London v. London, 94 S.W.3d 139, 148B49 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Valdez v. Valdez, 930 S.W.2d 725, 732B33 (Tex. App.CHouston [1st Dist.] 1996, no pet.); see also London, 94 S.W.3d at 151B52 (Fowler, J., concurring) (concluding that provisions of Chapter 38 of the Texas Civil Practice and Remedies Code are not available to a party bringing suit under the Family Code). [7] The trial court=s order does not show that the trial court heard evidence at the hearing, reflecting only that the trial court Areview[ed] the pleadings on file and heard arguments of counsel.@ See Siddiqui, 819 S.W.2d at 659 (AThe trial court=s failure to conduct an evidentiary hearing on the issue of attorney=s fees requires this Court to reverse and remand that particular portion of the default judgment.@). [8] Harmon does not argue that the dismissal of her claims Awith prejudice@ constitutes error on the face of the record.